Ex Parte Nii-Otabil Nelson

Opinion issued June 30, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00924-CR
———————————
EX PARTE NII-OTABIL NELSON, Appellant

On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1372073-A

MEMORANDUM OPINION

Appellant, Nii-Otabil Nelson, appeals from the denial of his application for a

writ of habeas corpus, filed under article 11.072 of the Texas Code of Criminal

Procedure, alleging that his trial counsel’s ineffectiveness led him to plead no

contest. We affirm.

BACKGROUND
On April 15, 2014, after being charged with injury to a child, a third-degree
felony, Nelson pleaded nolo contendere or no contest to the reduced charge of

assault—bodily injury, a class A misdemeanor. See TEX. PENAL CODE ANN.

§§22.04(a)(3), (f), 22.01(a)(1), (b) (West Supp. 2014). The trial court placed

Nelson on deferred adjudication community supervision for eighteen months that

day, assessed a $200 fine, and ordered him to serve seven days in jail as a

condition of probation. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West

Supp. 2014).

On May 30, 2014, through counsel, Nelson filed an application for a writ of

habeas corpus challenging the legal validity of the order in which community

supervision was imposed. See TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 1,

2(b)(1) (West Supp. 2014). Nelson alleged that his trial counsel had provided him

ineffective assistance of counsel because, among other claims, his counsel did not

explain with clarity the ramifications of the no-contest plea on Nelson’s future as a

medical professional and was wholly unprepared to try this case because counsel

failed to file motions or contact witnesses. Nelson further asserted that, as a result

of his trial counsel’s ineffectiveness, he pleaded no contest, and was forced to

agree to fourteen days in jail during off-hour service and, during his second

weekend in jail, was potentially exposed to a communicable disease and nearly

quarantined for thirty days which potentially endangered his future as a medical

professional and the lives of his innocent patients.

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 After Nelson and the State agreed to a writ hearing by affidavit, the trial

court held the writ hearing on August 28, 2014, where it reviewed the application,

which included the affidavits of Nelson and his trial counsel, and heard the

counsels’ arguments before denying the writ and requesting that the State submit

proposed findings of fact and conclusions of law. Although the clerk’s record

included the trial court’s findings and order denying Nelson’s habeas application,

signed on September 22, 2014, the clerk’s record did not contain the trial court’s

certification of Nelson’s right to appeal the denial of his application, or any

affidavits or other documents that the trial court stated in its findings it had

considered. Thus, this Court abated this case for the trial court to hold a hearing to

execute the certification and file a supplemental clerk’s record.

At the January 8, 2015 abatement hearing, the trial court noted that, in

denying Nelson’s habeas application, it had considered the affidavits of Nelson and

his trial counsel, Anthony T. Simmons, as well as a motion for discovery by

Simmons, but that these documents had been left out of the clerk’s record. The

trial court ordered the trial clerk to file those missing documents, along with the

certification of Nelson’s right to appeal the denial of his habeas application, in a

supplemental clerk’s record, that was filed in this Court.1

1
The trial court further noted that it would adopt the same findings it had signed on
September 22, 2014, in denying Nelson’s habeas application, and made those
active as of the January 8, 2015 abatement hearing date.
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A. Nelson’s Affidavit

In support of his habeas application, Nelson submitted a signed, but unsworn

and undated, affidavit alleging that he had hired Simmons, after having had an

attorney appointed for him, because he believed that Simmons was competent to

handle his case, but now realized that Simmons was not. Nelson claims that

Simmons had agreed to do several things, such as subpoena Nelson’s son’s school

and group home records to show his mental and physical condition, because his

son is a special needs individual, hire an expert to review the State’s photos, and

subpoena character witnesses. However, Nelson claims that it was not until the

week before his trial date that Simmons’ assistant returned Nelson’s call to tell him

that Simmons had done the things that Nelson had requested, the evidence was in

Nelson’s favor, and Simmons would meet Nelson in court on April 14, 2014.

Moreover, Nelson alleges in his affidavit that Simmons first spoke with the

prosecutor in court on the morning of April 14, 2014, before informing Nelson that

they would need to return the next day, but that he was too busy to go over his case

with Nelson at that time. The next day, April 15, 2014, Nelson claims that

Simmons again spoke directly with the prosecutor first before telling Nelson to

accept and sign the documents from the court, which Simmons told him were a

formality because Nelson would have thirty days to come back and go over all the

subpoenaed records that he had. Later that evening of April 15, 2014, Nelson

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asserts that he called Simmons to look over all the information Simmons said he

had received, and Simmons asked Nelson to meet him on April 16, 2014, when he

then apologized for the inconvenience and withdrew from the case. Thus, Nelson

claims that Simmons was ineffective per se because he was not prepared to try

Nelson’s case, refused to act on any of his requests, and had him plead no contest

while assuring him that he had thirty days to correct any problems, which was not

true.

B. Nelson’s Trial Counsel’s Affidavit

The State submitted Simmons’ affidavit, dated August 26, 2014. Simmons

stated that Nelson’s injury-to-a-child case had been pending for about a year before

he was hired days before trial. After Simmons obtained a continuance to prepare

for the case, he fully informed Nelson of the charges against him and addressed

any and all concerns. Simmons further filed a discovery motion to address all of

Nelson’s concerns and met with Nelson several times to review the State’s

discovery responses.

Furthermore, Simmons claimed that, in preparation for trial, he had

developed a voir dire, cross-examination, and argument of the evidence, and that

he was ready for trial when the prosecutor made an offer that he had to convey to

Nelson for his consideration. The plea agreement was for Nelson to agree to the

reduction to a misdemeanor, which occurred after several back-and-forth

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negotiations of the terms between Simmons and the prosecutor. Simmons asserted

that he had fully explained to Nelson the no-contest plea, all conditions of

probation, and the plea bargain’s effect on limiting his right of appeal, as

evidenced by Nelson’s signature on the plea documents. Simmons contended that,

throughout all the proceedings, Nelson was competent and understood their

conversations.

C. The Habeas Court’s Writ Hearing By Affidavit2
On August 28, 2014, the trial court held a writ hearing by affidavit in which

Nelson appeared with his counsel, Lott J. Brooks, III. The trial court noted receipt

of the affidavits of Nelson and his trial counsel, Simmons, and then heard brief

closing arguments by Brooks and the prosecutor, but did not hear any witnesses.

Nelson’s habeas counsel, Brooks, essentially argued that, after reviewing the

clerk’s file and Simmons’ affidavit, Simmons provided ineffective assistance

because he was not prepared to go to trial since Nelson had asked Simmons to do

several things, such as subpoena witnesses and hire an expert, which Simmons did

not do, which forced Nelson to take the plea. Nelson’s habeas counsel further

contended that because Simmons had told Nelson that he would have thirty days to

2
Although the court reporter initially filed an information statement in this Court
indicating no record was taken at the writ hearing, the writ hearing record was not
filed in this cause number until May 14, 2015, because the reporter had
inadvertently filed it in a related cause number 01-15-00258-CR.
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straighten out any errors, that led to Nelson’s agreeing to jail time, which made

Simmons ineffective per se.

The prosecutor responded that Simmons did not provide ineffective

assistance of counsel because his affidavit laid out a comprehensive list of things

that he did to prepare for trial, including moving for a continuance, and that he met

with Nelson to review discovery together to prepare for trial. The prosecutor

further noted, in closing, that Simmons stated that he had fully informed Nelson of

the charge against him, the possible ramifications of taking the plea, and the

conditions of probation.

The trial court noted that one of the criminal code provisions allows the

court to rely on its own personal recollection because it took Nelson’s plea and

recalled the negotiations. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(b).3

The court also noted that Nelson knew that he would have to do some jail time

because he had asked to get his calendar to see when he could do the jail time and

the parties came up with a proposed start date. After that, the trial court recalled

that there were many discussions about Nelson’s not understanding when he was

supposed to do the jail time and confusion about health issues at the jail. The trial

court recalled that it later amended the conditions of community supervision to

allow Nelson’s jail time to be done under house arrest, which clearly showed that
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There was no reporter’s record filed for the plea and punishment hearing.
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Nelson knew he was going to have to do some jail time as a condition of probation,

and he even picked the start date. The court further recalled that there were long

and tedious negotiations back and forth on the plea date, that Simmons seemed to

be working very diligently on this case, and that based on Simmons’ affidavit,

there was no reason to find him ineffective. Thus, at the end of the writ hearing,

the trial court orally denied Nelson’s writ and asked the State to submit proposed

findings for it to sign within the next thirty days.

D. The Habeas Court’s Findings of Fact and Conclusions of Law
The trial court denied Nelson’s habeas application by signing findings of

fact and conclusions of law and an order on September 22, 2014. It stated that it

had considered Nelson’s habeas application, the court’s own recollection of the

case, and the evidence presented at the writ hearing held on August 28, 2014.

Then the trial court entered the following findings of fact and conclusions of

law in denying Nelson’s habeas application:

FINDINGS OF FACT
1. On April 15, 2014, the Defendant, Nii-Otabil Nelson, was
placed on a misdemeanor Deferred Adjudication for 18 months
by order of this Court in Cause #1372073 after a plea of No
Contest.
2. The Defendant hired attorney Anthony T. Simmons to represent
him during plea negotiations and any subsequent trial in Cause
#1372073.

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 3. The focus of Anthony T. Simmons's legal practice is criminal
defense, and his practice includes representation and trial work
in both injury to a child and assault cases.
4. Anthony T. Simmons adequately informed the Defendant of the
charges against him and addressed any questions or concerns
that the Defendant had.
5. Anthony T. Simmons adequately prepared for trial by meeting
with the Defendant, filing a Motion for Discovery, evaluating
the State’s evidence, developing a trial strategy, and preparing
for trial including a voir dire, cross-examination questions, and
arguments.
6. Anthony T. Simmons informed the Defendant of the effect of a
no-contest plea, all conditions of community supervision, and
the effect that a plea bargain would have on his right to appeal.
7. The Defendant was competent at the time of the plea and had an
understanding of the charges against him and the effects of a
No Contest plea.
8. The Defendant was notified of and agreed to jail time in the
Harris County Jail as a condition of his Deferred Adjudication
during the plea negotiations and during his plea of No Contest.

CONCLUSIONS OF LAW
1. The Defendant has failed to prove that the representation by
attorney Anthony T. Simmons was ineffective assistance of
counsel.
2. The Court’s Order of Deferred Adjudication and its conditions
are legally valid.

Although Nelson prematurely filed his notice of appeal on September 2,

2014, it is deemed filed on September 22, 2014, the date the trial court signed its

findings and order denying his application. See TEX. R. APP. P. 27.1(b).

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 DISCUSSION
In his sole issue, Nelson contends that the trial court abused its discretion in

denying his habeas application because he received ineffective assistance of

counsel, which made his no-contest plea involuntary.

A. Standard of Review
“An applicant seeking habeas corpus relief based on an involuntary guilty

plea must prove his claim by a preponderance of the evidence.” Ex parte

Mandujano, No. 01-12-00922-CR, 2013 WL 4007801, at *3 (Tex. App.—Houston

[1st Dist.] Aug. 6, 2013, no pet.) (mem. op., not designated for publication) (citing

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)). The applicant bears

the burden to establish that a reasonable probability exists that, but for counsel’s

advice, he would not have pleaded guilty and would have insisted on going to trial.

See Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet. ref’d).

Further, the applicant must show that a decision to reject the plea bargain would

have been rational under the circumstances. See id. (citing Padilla v. Kentucky,

559 U.S. 356, 370, 130 S. Ct. 1473, 1485 (2010)).

When reviewing a trial court’s ruling on a habeas corpus application, we

view the evidence presented in the light most favorable to that ruling, and we must

uphold that ruling absent an abuse of discretion. See Ex parte Mandujano, 2013

WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). We “afford almost

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total deference to a trial court’s fact findings in habeas proceedings, especially

when those findings are based upon credibility and demeanor.” Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White,

160 S.W.3d 46, 50 (Tex. Crim. App. 2004)). We similarly defer to the trial court’s

application of the law to the facts if that resolution turns upon credibility and

demeanor determinations. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). If the resolution of the ultimate question turns on an application of

law, we review the determination de novo. See Ex parte Mandujano, 2013 WL

4007801, at *3.

In an article 11.072 habeas case, the trial judge is the sole finder of fact. See

Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d) (citing Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011)). An

appellate court reviews the evidence presented in the light most favorable to the

trial court’s ruling, regardless of whether the court’s findings are implied or

explicit, or based on affidavits or live testimony, provided they are supported by

the record. See Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston

[14th Dist.] 2013, no pet.).

Nevertheless, while we give deference to any underlying historical fact

determinations made by the habeas court, we review the ultimate question of

prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
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de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Ex

parte Murillo, 389 S.W.3d at 927. We will uphold the habeas court’s judgment as

long as it is correct under any theory of law applicable to the case. See Ex parte

Murillo, 389 S.W.3d at 926.

B. Applicable Law
To be valid, a plea must be entered voluntarily, knowingly, and intelligently.

TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West Supp. 2014); Fuller v. State, 253

S.W.3d 220, 229 (Tex. Crim. App. 2008); Ex parte Karlson, 282 S.W.3d 118, 128–

29 (Tex. App.—Fort Worth 2009, pet. ref’d). A plea is not voluntarily and

knowingly entered if it is made as a result of ineffective assistance of counsel.

Ulloa v. State, 370 S.W.3d 766, 771 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d).

The two-pronged Strickland test applies to challenges to guilty pleas, such as

in this case, based on ineffective assistance of counsel. See Ex parte Obi, 446

S.W.3d at 596 (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370

(1985)). Thus, to be entitled to relief, appellant was required to show by a

preponderance of the evidence that (1) trial counsel’s performance fell below the

objective standard of reasonableness and (2) there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

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been different. Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; see

also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. Thompson,

9 S.W.3d at 813. In reviewing counsel’s performance, we look to the totality of

the representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006). The “failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.” Williams v.

State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

In the context of pleas, the focus of the prejudice inquiry is “on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. Therefore, in order to satisfy

Strickland’s prejudice prong, when a defendant has pleaded guilty or nolo

contendere, he “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370 (emphasis added); Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).

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C. Analysis
Nelson claims that his trial counsel was ineffective because he was

unprepared to go to trial and failed to advise him of the ramifications of his no-

contest plea on his employment prospects, which rendered his plea involuntary.

Here, although Nelson asserts in his unsworn affidavit that his “intention when [he]

hired Mr. Simmons [was] to try [his] case,” Nelson did not present any evidence

that, but for his counsel’s allegedly-deficient performance, he would not have

pleaded no contest and instead would have insisted on proceeding to trial on the

original third-degree felony injury-to-a-child charge, where he faced a minimum of

two years to a maximum of ten years in prison, if convicted after trial. Cf.

Thompson, 9 S.W.3d at 813; see also TEX. PENAL CODE ANN. §§ 12.34(a),

22.04(a)(3), (f) (West Supp. 2014). Notably, Nelson did not allege in either his

unsworn affidavit or in his habeas application that he would have proceeded to

trial.

Moreover, to the extent Nelson claims that his trial counsel also was

ineffective for failing to advise him of the ramifications of his no-contest plea on

his employment prospects, a guilty plea is not rendered involuntary by a lack of

knowledge as to a collateral consequence of the plea. See State v. Jimenez, 987

S.W.2d 886, 888–89 (Tex. Crim. App. 1999); State v. Collazo, 264 S.W.3d 121,

127 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Nelson’s employment

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difficulties are not a direct consequence of his plea. See Collazo, 264 S.W.3d at

128 (citation omitted). In any event, we defer to the trial court’s historical factual

findings. See Johnson, 169 S.W.3d at 239. Specifically, the trial court found that

Simmons had informed Nelson of the charges against him and addressed any

questions or concerns Nelson had, informed Nelson of the effect of a no-contest

plea and all conditions of community supervision, and the court found that Nelson

was competent at the time of the plea and understood the effects of a no-contest

plea, and had agreed to jail time as a condition of his deferred adjudication.

Without evidence in the record that Nelson would have insisted on

proceeding to trial, but for his trial counsel’s allegedly-deficient performance, he

cannot establish the second prong of the Strickland test, and there is no need to

discuss the first prong. See Johnson, 169 S.W.3d at 232 (“If the defendant cannot

demonstrate that but for his counsel’s deficient performance, he would have

[availed himself of trial], counsel’s deficient performance has not deprived him of

anything, and he is not entitled to relief.”) (internal quotation marks and citation

omitted); Williams, 301 S.W.3d at 687. Thus, we hold that the trial court did not

abuse its discretion in denying Nelson habeas relief and we overrule his sole issue.

CONCLUSION
Accordingly, we affirm the trial court’s order denying Nelson habeas relief.

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 PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).

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